Discussion
104 It was not in contest before the primary judge, nor is it in issue on the appeal, that emotional distress is capable of constituting loss and justifying an order for compensation made pursuant to s 545(2)(b) of the FW Act. But an award of compensation is compensatory and no more: Richardson at [92] and [94] (Kenny J, with whom Besanko and Perram JJ agreed). It has no punitive purpose. Its only purpose is to compensate for the loss suffered. The nature of the conduct which led to the suffering may help to shed light on the extent of the suffering experienced by the victim, but the focus of an assessment of compensation is upon the harm actually done: Richardson at [50]. Different individuals will react differently to the same stimulus. Some will suffer more than others and some not at all. An award of compensation for pain and suffering is concerned only with the subjective feelings of the plaintiff: H Luntz, Assessment of Damages for Personal Injury and Death (3rd ed., Butterworths, 1990) ("Luntz") at [3.2.3].
105 Emotional wellbeing is an intangible not readily or usually valued in monetary terms. It is not a commodity which can be bought or sold. It is in that sense "incommensurable": Richardson at [82]. The loss of emotional wellbeing or the presence of emotional distress is difficult to assess and imprecision is to be expected. But difficulty of calculation is not ordinarily a basis for either reducing or increasing an award for damages, nor does uncertainty prevent an assessment, provided that some broad estimate can be made: Luntz at [1.9.30].
106 As Kenny J (with whom Besanko and Perram JJ agreed) said at [82] of Richardson, by reference to observations made by Hayne J in Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at [63], cases in which an award of damages is challenged as "manifestly inadequate" or "manifestly excessive" assume that there is a standard against which inadequacy or excess can be judged. In a passage in Rogers at [66], which Kenny J cited at [82], Hayne J said this:
"In searching for the standard … account must be taken of three basic propositions. First, damage to reputation is not a commodity having a market value. Reputation and money are in that sense incommensurable. Secondly, comparisons between awards for defamation are difficult. Every defamation, and every award for damages for defamation, is necessarily unique. Thirdly, because the available remedy is damages, courts can and must have regard to what is allowed as damages for other kinds of non-pecuniary injury."
107 Kenny J reasoned, at [82], that the search for the standard against which to measure the "manifest inadequacy" of an award of damages for sexual harassment required consideration of the same or similar matters as those identified by Hayne J in relation to awards for defamation. The same observation may be made in relation to awards of damages for non-economic loss occasioned by other kinds of conduct, including adverse action of the kind with which the primary judge dealt. As in the case of damage to reputation addressed by Hayne J, emotional distress is not a commodity having a market value. Second, comparisons between awards for emotional distress are difficult because every award of damages for emotional distress is necessarily unique. Third, as the available remedy is damages, regard can and must be had to other kinds of analogous non-pecuniary injury. Further, at [110], Kenny J said this:
"In Qantas Airways Ltd v Gama, French and Jacobson JJ held (at [96]) that reference to a negligence case in an attempt to "find some basis for an assessment of damages … did not err in principle". The need for coherence in the law means that, in attempting to compensate victims for comparable kinds of injuries, interconnected fields of law look to one another in establishing a "reasonable" sum by way of compensation. The analogy between sums awarded for pain and suffering and loss of enjoyment of life caused by unlawful discrimination with sums awarded in the tortious context is particularly obvious."
108 The reasoning of Kenny J in Richardson was that conducting a review of the decided cases for the purpose of providing a range for damages awarded forms part of, but does not constitute the entirety of, the relevant inquiry. Her Honour said that "it can be dangerous to rely too heavily on such a range in assessing the quantum of damages": at [90]. By quotation of the judgment of Barwick CJ, Kitto and Taylor JJ of O'Brien v Dunsdon (1965) 39 ALJR 78 at 78, Kenny J observed that an assessment should be made of an amount which can fairly be regarded as "reasonable compensation for the injuries and disabilities which a plaintiff has sustained", and that "the assessment should be made having regard, as far as possible, to the general standards prevailing in the community".
109 Her Honour concluded thus, at [95]:
"… In making an award, a court necessarily has regard to the general standards prevailing in the community. As indicated above, other awards of general damages for injury of the kind suffered by Ms Richardson may provide some measure of manifest inadequacy since they may provide some guidance as to what contemporary courts have discerned as proper compensation for such an injury according to generally prevailing community standards. Cases in the field of personal injury may be particularly useful because the object of an award of damages for non-pecuniary loss in such cases is much the same as an award of damages under s 46PO(4)(d) of the AHRC Act: see O'Brien v Dunsdon at 78 and Teubner v Humble (1963) 108 CLR 491 at 507 (Windeyer J); and Qantas Airways Ltd v Gama at [96]."
110 The question, or the "real issue", as posed by Kenny J at [93] (and as adjusted for the present case) is this:
"… whether, having regard to the facts as found, the amount fixed by the trial judge was so disproportionately [high] when the facts, as found, are considered that the award cannot fairly be seen as reasonable compensation for the loss and damage suffered by the [appellants] because of [the scab poster action]."
111 Like Kenny J in Richardson (at [108]), I am unable to discern any basis for thinking that pain and suffering and loss of enjoyment of life should be differently valued because of the type of conduct which brought about the suffering. Whether the cause be sexual harassment, other forms of harassment, bullying or adverse action of various kinds (save that the nature of the conduct may throw some light upon the extent of the harm done), the compensable value of the harm is to be assessed by reference to the pain and suffering and the loss of enjoyment of life experienced by the particular victim. In the present case, the prevailing community standard may be assessed by reference to a wide range of conduct resulting in awards of damages for emotional distress. And, as it turns out, a review of the decided cases suggests that, ordinarily, in the absence of physical or recognised psychological injury or significant loss of enjoyment of life, awards of damages for emotional distress are modest.
112 In Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 (Wilcox CJ, von Doussa and Marshall JJ), Ms Burazin was unlawfully dismissed from her employment. The trial judge found that she had been "extremely distressed" by her treatment at the hands of her employer. The judge also found that "the respondent by its agents behaved arrogantly and contemptuously towards her". The trial judge awarded $3,000 in compensation. On appeal, the Full Court held that the trial judge was entitled to take into account the shock, humiliation and distress suffered by Ms Burazin in considering the proper amount of compensation to be ordered. Noting (at 156) that there is an element of distress in every termination, and observing that to ensure compensation is confined within reasonable limits restraint is required, the Full Court determined to increase the award of compensation to $5,000 having regard to the circumstance that, upon termination, Ms Burazin had to suffer the humiliating experience of being escorted from the employer's premises by the police.
113 In Cameron v Warakurna Community Inc [1997] FCA 1260 (Marshall J), an employee who had been unlawfully dismissed was awarded $750 by way of compensation for mental distress occasioned by her termination. On review of the judgment of a Judicial Registrar, Marshall J (at 11) increased the sum awarded by $2,450. Marshall J regarded the distress suffered by the employee was at a magnitude normally associated with a termination of employment.
114 In Evans v Alto Parts Pty Ltd [1997] FCA 601 (Tomlinson JR), an employee of some six years' standing was unfairly dismissed. His evidence was that on learning of the dismissal he was "shattered". He had subsequently sought medical assistance for "stress problems". He was on medication to assist with sleeping. In relation to compensation for distress or injured feelings, a judicial registrar of this Court awarded $7,500.
115 In Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 (Barker J), an Indonesian citizen (Mr Puspitono), working in Australia under a subclass 457 working visa, was dismissed from his employment in contravention of ss 340 and 346 of the FW Act. As a result, Mr Puspitono was forced to leave Australia as he could not find another sponsor to take over his visa. He experienced financial difficulties. He was very distressed at the way in which his employer had treated him. He suffered headaches, stress and vomiting. He saw the doctor three times. Barker J, at [440], held that the dismissal, and the effect of the negative assessment of Mr Puspitono made by his former employer and conveyed to another employer in Indonesia, caused hurt and humiliation. The judge accepted Mr Puspitono's evidence that he was distressed and upset to find that, as a result of the adverse assessment, his reputation was such that he struggled to find work in the aircraft maintenance industry in Indonesia. Barker J awarded $7,500 for non-economic loss.
116 In Ucchino v Acorp Pty Limited [2012] FMCA 9 (Jarrett FM), Ms Ucchino was dismissed from her employment including because she was pregnant. The employer's conduct was held to be in contravention of s 351(1) of the FW Act. She claimed non-economic loss. Her dismissal was difficult for her because of the close community in which she and her children lived. She was embarrassed about her termination. Jarrett FM held that Ms Ucchino experienced the type of distress that accompanies most terminations and declined to include a component for non-economic loss.
117 In Richardson, Ms Richardson was sexually harassed by another employee. She was subjected to a humiliating series of slurs, alternating with sexual advances, building into a more or less constant barrage of sexual harassment over a period of months. The trial judge described the unlawful conduct as "persistent and ultimately callous". The sexual harassment occasioned distress that manifested in a noticeable change in Ms Richardson's demeanour and in significant physical symptoms. The conduct caused psychological injury: Ms Richardson suffered a chronic adjustment disorder with mixed features of anxiety and depression. The psychological damage was "not insignificant". The sexual harassment caused injury to Ms Richardson's sexual relationship with her then partner. The Full Court determined that the primary judge's award of $18,000 was manifestly inadequate and awarded $100,000.
118 The review of the cases undertaken by Kenny J in Richardson is instructive and included the cases I now turn to consider. In Lee v Smith [2007] FMCA 59 (Connolly FM), Ms Lee was subjected to months of sexual propositioning and other unlawful conduct which culminated in a sexual assault. She was found to have suffered "very significant pain, suffering, hurt and humiliation" over the five or six years before trial, had been deprived of the enjoyment of life, had been unable to work, suffered fear and had been, at times, suicidal. She was awarded $100,000. In Poniatowska v Hickinbotham [2009] FCA 680 (Mansfield J), a general damages award of $90,000 was made. Ms Poniatowska was subjected to sexual propositioning, inappropriate comments by her supervisor and the receipt of explicit pornographic messages on her telephone from a co-worker. At the time of the award, she remained incapacitated for work by her psychiatric illness. She had experienced years of considerable personal distress and unhappiness caused by her underlying psychiatric condition (an adjustment disorder with mixed anxiety and depression) brought on by the sexual harassment. Kenny J accepted at [79] of Richardson that, in both of those cases, the victims sustained more severe injuries than Ms Richardson, which suggests that a higher award of compensation may have been made in each of those cases had the court had the benefit of the Full Court's judgment in Richardson.
119 At [99]-[100], Kenny J referred to Willett v Victoria [2013] VSCA 76 (Tate and Priest JJA). As a result of being exposed to bullying and harassment in her employment, Ms Willard suffered from ongoing and persistent major depressive disorder which, while varying in severity from mild to moderate, affected her in an invasive way on a daily basis requiring significant doses of anti-depressant and associated medication which rendered her permanently incapacitated for her pre-injury work as a police officer. She had been deprived of the career she had chosen, in which she was proficient, and which she found fulfilling. Ms Willard was awarded $250,000 as compensation for her pain and suffering and loss of enjoyment of life.
120 At [101], Kenny J discussed Swan v Monash Law Book Co-operative (2013) 235 IR 63 (Dixon J). Ms Swan had been exposed to an unsafe workplace in which she was subjected to bullying, harassment, and intimidating conduct. This conduct caused Ms Swan to suffer a mental "breakdown". Her injuries were held to have been "extremely onerous and deleterious". She suffered from an adjustment disorder/depressive condition, continuing anxiety and depression, somatic symptoms including temporomandibular joint dysfunction with bruxism and tinnitus, chronic insomnia, pain, including migraine and headache, anxiety, a disabling sensitivity to antidepressants, high blood pressure, and debilitating rashes and skin irritations that all required separate diagnosis and separate ongoing management and treatment. The trial judge was satisfied that Ms Swan remained substantially compromised in most aspects of her life, which had been reduced to one of isolation and disconnection from family and friends and from the world around her. She had lost her personal independence, lost her confidence and lost a capacity to take interest in and derive pleasure from the stimulus of life. It was held that she suffered a substantial loss of enjoyment of life, with much pain and suffering, both mental and physical. She was awarded $300,000.
121 At [104] of Richardson, Kenny J referred to Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784 (Wilcox J). Mr Nikolich recovered damages for breach of his employment contract with an employer in the finance industry, in respect of loss and damage caused by workplace bullying and harassment. It was held that Mr Nikolich had "suffered, and perhaps continues to suffer, a major depressive disorder", although his psychological condition would not ultimately prevent him from returning to the finance industry. As Kenny J observed, when fixing an award of general damages at $80,000, Wilcox J described Mr Nikolich as extremely distressed and disturbed by the way in which he had been treated, which had caused him to suffer a mental illness from which (at the time of the trial) he had yet to fully recover. His psychological condition appeared to have been a major factor in the break-up of his marriage and separation from his children. The trial judge observed that it must have adversely affected his professional reputation. Whilst Mr Nikolich's psychological disability was not permanent, Wilcox J thought that it may take him some time to obtain employment and return to normal life.
122 In Kraus v Menzie [2012] FCA 3 (referred to in Richardson at [107]), Ms Kraus was employed as a receptionist by a company owned by Mr Menzie. She alleged that Mr Menzie had sexually harassed her on numerous occasions by making unwelcome advances and engaging in other unwelcome conduct. She had limited success on her claim. Mansfield J accepted that she had been, at times, in a consensual sexual relationship with Mr Menzie. However, Mansfield J held that Mr Menzie had sexually harassed Ms Kraus by providing her with inappropriate gifts, by urging her to swim with him on one occasion, by attempting to share a cabin bunk with her whilst on a work trip and by sending sexually explicit phone messages and images. Mansfield J was, however, not satisfied that the harassment had caused Ms Kraus "any real detriment": it played no role on the onset of her psychiatric illness and it "barely had any adverse personal effect upon [her]". Ms Kraus was awarded $12,000 for non-economic loss.
123 In Walker v Citigroup Global Markets Australia Pty Ltd (2006) 233 ALR 687 (Gyles, Edmonds and Greenwood JJ) (referred to at [105] of Richardson), a Full Court substituted for a trial judge's award of $5,000 general damages of $100,000. The Full Court accepted that Mr Walker had suffered "a considerable dislocation of his life with serious long-term effects" as a result of the unlawful conduct to which he had been exposed. Mr Walker's marriage had broken down and he had lost the day-to-day company of his children in the year after the unlawful conduct in question. Damage to his reputation was relevant although, as Kenny J noted at [106], that was not the focus of the Full Court in determining to increase the damages awarded.
124 In RailPro Services Pty Ltd v Flavel [2015] FCA 504, Perry J substituted, for an award of $25,000 by a judge of the Federal Circuit Court, an award of $7,500. The award was for hurt and distress occasioned by the dismissal of an employee in contravention of s 340(1) of the FW Act. The employee, Mr Flavel, was a train driver involved in a train accident. As a result of the accident he suffered post-traumatic stress disorder and moderately-severe depression. Whilst suffering from those conditions, he was asked to undertake a driving assessment and refused to do so. His refusal occurred because he was not feeling confident that he could carry out the assessment, as he had been feeling sick, dry in the mouth, highly anxious and wanted to vomit. He had considered that he could not perform a driver's duties safely, and reluctantly elected to be relieved of the driving duties. His employment was terminated at a meeting shortly thereafter for refusing to undergo the assessment without reasonable cause.
125 At [178], Perry J noted that the trial judge's reasons "do not sufficiently expose the reasons for so high an award of $25,000 for distress, hurt and humiliation". Her Honour nevertheless considered that the circumstances of the dismissal warranted an award for distress having regard to a number of factors including the circumstances in which the notice of termination was given and the deterioration in Mr Flavel's mental condition after the dismissal, which was suggestive of the distress and hurt which had been felt upon being dismissed. The unchallenged evidence of Mr Flavel's psychiatrist was that his functioning had deteriorated alarmingly after he was dismissed (at [169]).
126 In Sayed v Construction, Forestry, Mining and Energy Union (2015) 327 ALR 460 (Mortimer J), a trainee organiser employed by a union was dismissed. Mortimer J held that, by reason of the organiser's political opinion, he was dismissed from his employment in contravention of s 351 of the FW Act. At [316] and in relation to non-economic loss, her Honour said:
"I consider the respondent should be ordered to pay the applicant a modest amount of general compensation for the unlawful way in which it terminated his employment. Taking into account the absence of any probative evidence other than the applicant's display of despondency, disappointment and anger, but recognising that he relocated from Melbourne to Queensland and then to Perth, and was dismissed summarily and placed directly on a plane back to Melbourne from Sydney, having been compelled to pack up and leave Perth at short notice, any reasonable person in the applicant's position would find this humiliating and distressing. I propose to award the applicant $3000 in compensation for humiliation and distress."
127 In the case at hand, non-economic loss was suffered in the absence of any physical injury or psychiatric illness. At common law, and save for exceptional circumstances, a person is not liable in negligence for being a cause of distress, alarm, fear, anxiety, annoyance, or despondency, without any resulting recognised psychiatric illness: Tame v New South Wales (2002) 211 CLR 317 at [7] (Gleeson CJ), [44] (Gaudron J), [171], [175] (Gummow and Kirby JJ), and [285] (Hayne J). Negligence cases are therefore not likely to be of much assistance in throwing up circumstances for the assessment of compensation for emotional distress comparable to those of this case. I turn, then, to other fields.
128 Cases in which compensation for non-economic loss has been awarded pursuant to s 85B of the Sentencing Act 1991 (Vic) ("Sentencing Act") have the potential to provide some guidance. That is because, under the scheme for compensating victims of crime provided for by ss 85A and 85B, injury is defined to include "grief, distress or trauma or other significant adverse effect". Section 85B empowers a court to require an offender to pay compensation to a person who has suffered injury as a direct result of the offence. A number of claims under s 85B have followed contraventions by employers of the Occupational Health and Safety Act 1985 (Vic) ("OHS Act"). In such cases, employees and family members of employees harmed at work are often claimants. Like the present case, anxiety or concern for family members is, to some extent, an element of the factual circumstances attending many of those cases.
129 In Director of Public Prosecutions v Esso Australia Pty Ltd [2003] VSC 222 and Director of Public Prosecutions v Esso Australia Pty Ltd [2003] VSC 232, Cummins J dealt with twenty-one applications for compensation pursuant to s 85B. Each of the applicants was a victim who had suffered injury (as defined by s 85A) as a result of breaches of the OHS Act by Esso. The convictions related to Esso's failures to provide and maintain, so far as was practicable, a safe work place and safe systems of work at a major gas-processing facility at Longford, Victoria. On 25 September 1998, as a consequence of Esso's failure, a catastrophic rupture of plant occurred resulting in explosions and fires in which two employees were killed and many others seriously injured.
130 The claimants for compensation dealt with by Cummins J fell into two broad categories: they were either employees of Esso, or family members of employees. Cummins J noted (at [14] of [2003] VSC 222) that he had had regard to a number of determinations as to the appropriate compensation to be awarded in serious cases, observing that "[t]he subsisting guidance which is to be derived from the authorities is that on the one hand one must not be overborne with emotion and on the other hand one must not be insensitive to the realities of suffering and distress".
131 Most of the employee applicants were awarded $100,000. Two were awarded $150,000. In each case, the injury suffered included post-traumatic stress disorder ("PTSD") and in most cases the psychiatric evidence was that the PTSD was chronic. To give an example, Mrs Keryn Conners was directly exposed to the disaster. As his Honour described it, she was exposed to the grim facts of death and injury and to the fear of uncertainty of the missing. She was exposed to the aftermath of the explosions on a daily basis. Cummins J found that "[h]er fears and apprehensions continue[d] daily and nightly". Mrs Conners was held to suffer from a chronic PTSD of moderate degree which had stabilised by the time of the trial (some four and a half years after the disaster), although his Honour described her as a person who remained "highly stressed and distressed". She was awarded $100,000. Another employee, Mrs Angela Jones, was held to suffer from chronic PTSD of mild to moderate degree accompanied by reactive depression. She had been directly exposed to the horror of the disaster and was at the epicentre of organising to contain and limit its effects. It was held that she remained highly stressed including because of a special, close, and longstanding relationship she had with an employee who was killed. She was awarded $150,000. Another employee, Mr Michael Shepard, was also awarded $150,000. He was present at a heat exchanger when it exploded. He was blown off his feet and rendered unconscious. He suffered from a chronic PTSD of moderate degree.
132 Of greater relevance to facts raised by this case are the awards of compensation to those applicants who were family members of employees of Esso and who had suffered as a result of the offences. Most of those applicants were awarded $25,000 in compensation, the range being $20,000-$50,000. So, for example, Mr Stuart Jones, the husband of Mrs Jones (dealt with above) provided care and support to his wife on a continuing basis. The strain and effect of the trauma on his wife was held to have had a deleterious effect on the family situation. A psychiatrist opined that Mr Jones suffered from chronic anxiety of mild degree. He did not require psychiatric treatment apart from joining his wife in counselling. A report of a therapeutic counsellor concluded that Mr Jones suffered a major depressive episode. Mr Jones was awarded $25,000.
133 Mrs Vicki Miller was the wife of an Esso employee. She separated from her husband in circumstances where it was held that both she and her husband were seriously afflicted by the disaster and ultimately separated after their relationship deteriorated. Mrs Miller was held to have suffered considerable psychological pain as a result of the explosions and their effect on her husband. A psychiatrist opined that she suffered an anxiety state and reactive depression of moderate degree and had experienced considerable pain and suffering. The diagnosis of depression and high anxiety was confirmed by several other medical practitioners. Cummins J found that she had suffered an especially harmful consequence of the explosions and awarded her $50,000.
134 There were eight family member applicants who were each awarded $25,000. These claimants were held to have been afflicted by the deleterious effects of the disaster upon their partners (or, in one case, father). In each case, psychiatric evidence supported a finding of an anxiety state sometimes described as chronic, sometimes as mild, and sometimes as both chronic and mild. On some occasions a diagnosis of depression was also present.
135 As I have stated, Mr Shepard was present during the explosion, was rendered unconscious and suffered chronic PTSD. His wife, Mrs Elizabeth Shepard, was also a claimant. She received the lowest award, of $20,000. A psychiatrist's report concluded that Mrs Shepard did not suffer from any defined emotional disorder. However, Cummins J was satisfied that Mrs Shepard had experienced pain and suffering. She was described as a stoic person who had loyally supported her husband through their difficulties since the disaster occurred (some four and a half years earlier).
136 In Director of Public Prosecutions v Esso Australia Pty Limited [2001] VSC 513, Cummins J considered ten further claims of pain and suffering consequent upon the disaster at Longford. His Honour awarded $50,000 to each of three daughters of an employee who was killed in the disaster. One, a Ms Lyons, was diagnosed as mildly depressed, with reactive depression with anxiety, and as being close to also suffering from PTSD. Ms Lyons was held to be distraught, and grief-stricken, with her sleep and mood substantially affected by her father's death. Medical evidence was that her health had significantly deteriorated since the death of her father. She needed psychological counselling. She was taking antidepressant medication. The second daughter, Ms Madalin, was diagnosed by a psychiatrist as suffering from a profound and complicated grief reaction and as being emotionally distressed, requiring some forty consultations with a psychologist. The third daughter, Ms Lowery, was held to have had a pre-existing depressive illness, aggravated by her father's death. She was also diagnosed with PTSD.
137 An employee, Mr Darren Borthwick, was at the site of the explosion. He was diagnosed by a psychiatrist as suffering intrusive thoughts, depression and anxiety and as having probably developed PTSD, which had gradually subsided. His employment was adversely affected and his marriage remained fragile. He was awarded $100,000. Another employee, Mr Martin Jackson, was also at the site at the time of the explosion. He twice went into the inferno to help others. He was later awarded a personal bravery medal by Victoria's Governor-General. As a consequence of his actions he suffered physically to his breathing and suffered significant psychiatric injury. He suffered chronic PTSD, nightmares, trauma, grief, excessive drinking, irritability, nervousness, panic and intolerance. He was awarded $200,000. His wife was found to have been one of many women who had "loyally provided succour and support" to their husbands. She had had to cope with, and guide her children through, her husband's anxiety and depression which had a deleterious effect upon her. She had suffered anxiety and depression. Cummins J held that she had endured a very substantial burden and suffering. She was awarded $50,000.
138 The three sons of Mr Peter Wilson, who was killed by the explosion, were each awarded $75,000. One suffered from a chronic adjustment disorder, with anxiety and depression. No formal psychological diagnosis was in evidence in relation to the other two sons. However, Cummins J took the view that each son had been grievously afflicted by the loss of a close and loving relationship with their father. Each continued to suffer from both the loss of their father and from the visible effect of that loss upon their mother. His Honour held that it was quite apparent that the two brothers for whom there was no psychological diagnosis both suffered significant anxiety and depression and, like the third brother, had significant psychological sequelae that would continue.
139 Finally, Mr Wilson's widow was awarded $300,000 in compensation. It was held that she had a deep and continuing grief and loss. She suffered a chronic adjustment disorder, depression and anxiety. The effects were held to be very substantial and permanent.
140 In Director of Public Prosecutions v Energy Brix Australia Corporation Pty Ltd (2006) 14 VR 345, the Court of Appeal of the Supreme Court of Victoria considered whether awards for compensation made under s 85B of the Sentencing Act were manifestly inadequate. Vincent JA, with whom Buchanan and Neave JJA agreed, made an observation at [30] that is pertinent to any comparative assessment to be made with the present case, namely that the fact that an injury or loss has resulted from the commission of a crime cannot be ignored. His Honour's point was that there is a difference, all other things being equal, between harm brought about by natural causes, harm brought about by civil wrongdoing, and the same harm brought about by criminal conduct: the latter often involves the deepest sense of outrage and therefore has a more acute impact on the lives of the individuals concerned. His Honour also noted at [36] that there obviously cannot be a yardstick by which the extent of personal grief or distress can be measured, nor therefore a method of conversion of a human emotion or psychological reaction into an amount of money. Vincent JA recognised that, in that context, widely-differing views may be held as to an appropriate award and that an appellate court must be extremely reluctant to intervene in such cases. Nevertheless, the Court of Appeal did intervene in that case.
141 The claimants were two adult children of a worker killed whilst performing boiler cleaning and servicing operations at a power station operated by the offender. He died when he was "literally buried and burned beneath an inferno comprising seven cubic metres of red hot ash and burning char". When the worker's 21-year-old daughter discovered that her father had been killed, she was deeply shocked and it took some time for her to comprehend what she had been told. A psychiatrist opined that the manner in which she learnt of her father's death and the nature of the accident caused the daughter considerable distress and that certain of her symptoms were consistent with her suffering from PTSD, although she did not present with the complete clinical picture for that disorder. The psychiatrist described her condition as "suffering from a residual adjustment disorder, accompanied by anxiety". The primary judge had assessed the appropriate compensation at $20,000. The Court of Appeal substituted an award in the sum of $50,000.
142 The son of the deceased worker was 22 years old at the time of his father's death. A psychiatrist opined that he had experienced a natural sense of grief at the loss of his father, although he had not been particularly close to his father. The nature of his father's death had caused distress although the son's main concern appeared to be the welfare of his mother and sister, who had been closer to his father than he had been. The psychiatrist opined that it could not be said that the son was suffering from any well-defined nervous disorder, although he was naturally concerned about his mother and her welfare, as evidenced by the fact that he had chosen to return home in an effort to support her. The psychiatrist concluded that the father's death and the circumstances in which the son had learnt about it had caused significant pain and suffering at the time, although the son had come to terms with that situation. The primary judge assessed the compensation to be awarded at $15,000. The Court of Appeal increased the sum awarded to $35,000.
143 In further observations made by Neave JA at [54], her Honour observed that there had been a number of orders for payment of sums in excess of $35,000 to relatives of deceased victims in circumstances where injuries had been caused by breach of occupational health and safety requirements. Her Honour also referred to a database of awards for compensation for pain and suffering and mental distress maintained by the Office of Public Prosecutions. In relation to people who had suffered direct harm as a result of violent offences such as sexual assault and intentional infliction of injury, the database showed that the awards were often under $20,000. Her Honour thought, however, that in part that may reflect the statutory requirement (in s 85H(1) of the Sentencing Act) to take into account the financial circumstances of the offender and the nature of the burden that will be imposed by the obligation to make the payment. Neave JA concluded, at [56], that a comparison with other orders which had been made under s 85B, in the context of industrial accidents, persuaded her that the orders for compensation made by the primary judge "[fell] below the level of award that could be made in the exercise of a sound discretionary judgment".
144 Finally, I should add in relation to the cases that I have surveyed concerning s 85B of the Sentencing Act that none appear to be cases in which the amount awarded was affected by the financial circumstances of the offender.
145 In the penalty judgment, the primary judge considered Australian Licensed Aircraft Engineers Association and Richardson. It is likely that the primary judge also considered the cases surveyed in Richardson, although specific mention was only made of Kraus.
146 The extent to which the primary judge was influenced by the award in Kraus is not clear. He may well have been influenced. An award of $12,000 for "barely … any adverse personal effect" may have been viewed as justifying the significantly-higher awards made to the non -striking employees. To my mind, however, the survey of the cases undertaken above suggests Kraus to be an outlier.
147 The primary judge distinguished Australian Licensed Aircraft Engineers Association, where $7,500 was awarded for the emotional distress associated with termination of employment, the loss of a capacity to stay in Australia, reputational damage and loss of employment prospects. Each of the stated bases upon which that case was distinguished is, with respect, doubtful. The first is that, in Mr Puspitono's, case "there was no public element to his distress and humiliation" (at [75]). However, it does not follow that one type of offensive conduct delivered publicly is necessarily more hurtful than another delivered privately. It all depends on the subjective reaction of the victim. The second basis (at [76]) is that in Australian Licensed Aircraft Engineers Association, "there was no element … of Mr Puspitono experiencing a continuing fear of physical harm to himself or his family or of property damage". That may be so, but again and with respect, the source of emotional distress is not determinative of the extent of the suffering actually experienced. An individual may be little affected by a fear of physical harm but devastated by a loss of reputation.
148 To my mind, taking into account the prevailing community standard as illustrated by the cases surveyed (and putting Watson's position aside for the moment) I do not consider that the findings made about the extent of pain and suffering of the non-striking employees are different in magnitude from the extent of pain and suffering (and the loss of enjoyment of life) experienced by Mr Puspitono or, indeed, that suffered by Mr Flavel in RailPro. That suggests that for Daly, Mawbey, Donaldson-Stiff and Scott an award of $7,500 would have been appropriate. For reasons shortly to be discussed, I regard $10,000 as an appropriate award for Watson.
149 However, as earlier stated, an appeal court ought not interfere with the sum fixed by the trial judge simply because it considers it would have fixed some other amount. Interference is justified where, by reference to the general standards prevailing in the community, the award cannot fairly be seen as reasonable compensation for the loss and damage suffered. Or, in other words, it is justified where the award is manifestly excessive.
150 The survey undertaken above (and putting Kraus aside) shows that non-economic loss not involving a recognised psychological disorder or considerable and prolonged dislocation or loss of enjoyment of life has attracted awards in the range of nil to $7,500. As I have said, the extent of distress found in the cases at the higher end of that scale is not, to my mind, different in magnitude to the extent of distress found by the primary judge in this case. The magnitude of pain and suffering found in the cases where in the order of $20,000 has been awarded is not comparable to that found for Daly, Scott, Mawbey or Donaldson-Stiff. Each of the family members awarded $25,000 in Esso was diagnosed as suffering from a psychological disorder. Taking Mr Jones, for example, he suffered chronic anxiety of mild degree and had to endure the deleterious impact upon his family life of a partner with chronic PTSD, who four and a half years after the onset of her illness, remained "highly stressed". In contrast, Scott was "offended" and started to worry that violence might be done to himself or to his family but "after a week or so he talked himself out of dwelling on those sorts of thoughts". The extent of Scott's pain and suffering is plainly not in the same league as that of Mr Jones.
151 The survey shows that the pain and suffering and dislocation to life caused by the loss of a father killed as a result of criminal offending has been compensated within the range of $35,000 to $75,000. Watson's award of $40,000 exceeds the $35,000 awarded to one such victim and is not very distant from the $50,000 awarded, for example, to the 21-year-old claimant in Energy Brix whose father was burnt beneath an inferno of hot ash and char and who, as a result, suffered psychological injury. Again, Watson's pain and suffering is plainly not in the same category. The same point could be made by reference to the many cases in which $100,000 or thereabouts was awarded to employees the subject of serious and sustained sexual harassment, workplace injury or wrongful termination, where one or a combination of psychological injury and serious dislocation of life was suffered. Watson's pain and suffering (of which I will say more shortly) does not approach half of the pain and suffering experienced by those victims. To my mind, it is simply not on the radar of serious harm of that kind.
152 Returning to Watson's circumstances, as is already apparent, I regard the award made for Watson as plainly disproportionate to the findings made of his pain and suffering. I accept, however, that those findings support a higher award of compensation than for the other non-striking employees.
153 Only Watson gave evidence of any physical symptoms, although slight. He was unable to sleep for a number of nights. That evidence appears to have been a basis for Watson receiving twice the compensation received by the other non-strikers, together with the "particular outrage" experienced by Watson because he had been falsely accused of refusing to strike. However, that was not the only basis, as [81]-[82] of the penalty judgment records:
"[81] Mr Watson was unable to sleep for a number of nights after he found out about the scab poster. He felt a particular outrage because he had not worked during the strike and he had been falsely denigrated by Mr Tracey as having done so. When he sought an explanation from Mr Tracey as to why he was named in the scab poster and sought an apology from Mr Tracey, Mr Tracey insulted Mr Watson and refused to give an apology. Mr Watson's emotional distress was further exacerbated by the fact that Mr Tracey had told him that he would not be able to work again in the maritime industry in Western Australia and, on the basis of the threat, Mr Watson changed his plans which had been to work overseas for some time before returning to Australia. Further, Mr Watson feared that he and his family would suffer harm at the hands of disgruntled workers.
[82] In my view, the sum of $40,000 is an appropriate and reasonable award of compensation for Mr Watson."
154 In taking into account the effect upon Watson of Tracey's insult, Tracey's refusal to apologise to Watson, and Tracey's threat made to Watson that he would not work in the maritime industry in Western Australia, and in taking into account the consequence for Watson of that threat, the primary judge took into account harm which was not occasioned by the scab poster action. That aspect of the harm suffered was a consequence of Tracey's underlying view that Watson was a strike-breaker. Whilst that view was reflected in the poster, the scab poster action was different conduct and, with respect, it was erroneous for the primary judge to have attributed the harm inflicted by Tracey's verbal conduct (which was not the subject of the proceeding), to the scab poster action (which was).
155 In any event, the award of $40,000 is manifestly excessive. Taking into account Watson's physical symptomology and the "particular outrage" experienced by Watson resulting from being wrongly accused, an award of $10,000 should be substituted. As I have already stated, I would substitute $7,500 for the awards of $20,000 made to Daly, Mawbey, Donaldson-Stiff and Scott.